Carter v. State
| Decision Date | 06 April 1926 |
| Docket Number | 4 Div. 177 |
| Citation | 108 So. 642,21 Ala.App. 406 |
| Parties | CARTER v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied May 25, 1926
Appeal from Circuit Court, Pike County; W.L. Parks, Judge.
J.B. Carter was convicted of violating the prohibition laws, and he appeals. Reversed and remanded.
Ballard & Brassell, of Troy, for appellant.
Harwell G. Davis, Atty. Gen., and Robt. G. Tate, Asst. Atty. Gen., for the State.
We have examined this record and find only one question presented. The defendant filed his plea of misnomer as follows:
This plea follows the form laid down in the Code, § 5205, form 4. If this plea was proven the prosecution could not have proceeded upon the indictment as returned by the grand jury. Butler v. State, 17 Ala.App. 511, 85 So. 864.
According to the return of the clerk to the certiorari issued from this court, the original indictment charged that "J.B. Carter did buy," etc., whereas after trial the indictment had been altered or changed by some party unknown so as to add to the indictment the words, "whose name is otherwise to the grand jury unknown." Acting upon the return of the clerk duly certified, we must pass upon the indictment without the words, "whose name is otherwise to the grand jury unknown." It will therefore be seen that the defendant's plea of misnomer was in form and properly before the court, to be disposed of as in such cases made and provided. The trial judge did not do this, but without motion, demurrer, or issue joined, overruled the defendant's plea. This is shown by the judgment and was error to a reversal.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
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